Historic new whistleblower protection laws

Parliament house flag post

Historic new whistleblower protection laws

Posted 18/07/2013 by Mary Anne Neilsen

In the final days of the 2013 winter sittings, the Commonwealth Parliament passed historic public interest disclosure legislation to provide the most comprehensive protection regime for public sector whistleblowers in Australia. This legislation, the Public Interest Disclosure Act 2013 and its related consequential Act, which became law on Monday 15 July, will commence operation within the next six months. Its purpose is to provide a scheme for the investigation of alleged wrong doing in the Commonwealth public sector and provide protective mechanisms for current or former officials who make public interest disclosures under the regime.


Robust public interest disclosure laws are seen as fostering transparency and accountability in government. As the last Australian jurisdiction to implement stand-alone disclosure legislation, the new federal scheme is considered long overdue. The new law fulfils a Labor election promise of 2007 as well as the 2010 agreement with independents Andrew Wilkie, Rob Oakeshott and Tony Windsor. It also implements the Government’s response to the 2009 House of Representatives Standing Committee on Legal and Constitutional Affairs report Whistleblower Protection: A Comprehensive Scheme for the Commonwealth Public Sector, an inquiry chaired by the current Attorney-General Mark Dreyfus.
 
The initial introduction of the legislation into Parliament in March 2013 was greatly anticipated, although its narrow coverage and complexity at that time disappointed many advocates who said it held out false promises of protection for public servants. However, with the benefit of two parliamentary inquiries and numerous submissions from leading researchers and academics, the Government introduced a series of late amendments (73 in all), which enhanced the coverage of the scheme greatly and reduced many of its complexities and ambiguities. 
 
The Parliamentary Library’s Bills Digest provides a summary of the legislation as introduced into Parliament and canvasses the views of the various submitters to the parliamentary inquiries.
 
Key features of the new law are:
  • It has broad coverage across the Commonwealth public sector, including application to the Australian Public Service, statutory agencies, Commonwealth authorities, the Defence Force, Parliamentary departments and contracted service providers for Commonwealth contracts.
  • Conduct is disclosable if it falls within the broad concept of wrong doing in the public sector. Conduct is not disclosable if it relates to political or expenditure matters with which a person disagrees. Thus the legislation does not provide a platform for people to agitate political grievances.
  • Whistleblowers can disclose directly to their supervisors, as well as to the ‘disclosure officer’ of the agency.
  • In addition to internal disclosures, it is possible to make a disclosure externally (such as to the media or a member of parliament) providing certain conditions apply. A whistleblower will still be protected if he goes public in circumstances believing that an investigation into his internal disclosure was inadequate. To gain protection, the whistleblower must disclose the wrongdoing internally first.
  • There is also provision for ‘emergency disclosures’. Where there is a substantial and imminent danger to health and safety or to the environment, the internal disclosure can be by-passed and disclosures can immediately be made public in accordance with specified conditions.
  • The Commonwealth Ombudsman’s office will have oversight functions and assist agencies and disclosers, to understand and comply with the legislation. The Ombudsman will oversee agency decisions and provide annual reports to Parliament on the operations of the scheme.
  • Intelligence agencies will be supervised by the Inspector General of Intelligence and Security. External disclosures are not permissible in relation to intelligence agencies and intelligence information.
To date, the passing of the new law has generally been welcomed and it is seen as a significantly enhanced and comprehensive framework for public interest disclosures in the Commonwealth public sector. 
 
The Coalition parties supported the legislation in Parliament and agreed that the Government amendments made for a tighter and more focused scheme.
 
The Australian Greens, while disappointed that many of their amendments were not adopted, are pleased that they achieved amendments to allow emergency disclosures in cases where there is a substantial and imminent threat to the environment. 
 
Dr AJ Brown, legal academic and leading authority on whistleblower protection laws is quoted as saying the new law as amended would restore the scheme to the original vision favoured by Mr Dreyfus when he chaired the 2009 inquiry into whistleblower protection. Furthermore Dr Brown believes the law is now robust enough to pass the ‘Kessing test’, meaning, had it been in place, it would have provided protection to Mr Allan Kessing, a former Customs officer, who was convicted of breaching secrecy provisions in the Crimes Act 1914 after information regarding criminality and corruption at Sydney Airport was published in the media.
 
Some advocates however argue there are still gaps. For example, Independent MP Rob Oakeshott says that while the new scheme is ‘overdue, welcome, and expected by the community’, it could have better dealt with whistleblowing against politicians and intelligence agencies, and he hopes in the future these issues will be comprehensively resolved. 
 
Both the Government and Coalition parties rejected extending the regime to members of parliament, arguing that this would be an unacceptable incursion into parliamentary privilege and the role of the Parliament itself. In relation to intelligence agencies, again both the Government and the Coalition rejected the lifting of the blanket exclusions for intelligence agencies in relation to external disclosures on the grounds that inadvertent or inappropriate disclosure of intelligence information may compromise national security and potentially place lives at risk.
 
The legislation provides for a statutory review of its operation two years after commencement. Given its speedy passage and also the significance of the reforms it introduces, that review should be useful and welcome.


Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print

FlagPost

Flagpost is a blog on current issues of interest to members of the Australian Parliament


Parliamentary Library Logo showing Information Analysis & Advice

Archive

Syndication

Tagcloud

Refugees asylum immigration Australian foreign policy Parliament climate change elections women social security Australian Bureau of Statistics Employment indigenous Australians Sport illicit drugs gambling people trafficking taxation Medicare welfare reform Australian Defence Force higher education welfare policy United Nations health financing Asia Middle East criminal law disability Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget school education forced labour aid statistics Australian Electoral Commission WADA income management Industrial Relations emissions trading dental health Australia in the Asian Century steroids detention Private health insurance OECD ASADA labour force transport Law Enforcement Australian Federal Police people smuggling poker machines National Disability Insurance Scheme Australian Crime Commission 43rd Parliament slavery election results Papua New Guinea Australian Public Service constitution International Women's Day corruption Afghanistan Fair Work Act child protection Aviation debt federal election 2013 parliamentary procedure ALP New Zealand Newstart Parenting Payment Census politics High Court skilled migration voting mental health Federal Court terrorist groups Higher Education Loan Program HECS governance youth paid parental leave environment foreign debt gross debt net debt defence capability customs Senate doping health crime health risks multiculturalism aged care Gonski Review of Funding for Schooling sex slavery sea farers Special Rapporteur UK Parliament Electoral reform political parties banking firearms public policy Population violence against women domestic violence China ADRV terrorism science research and development social media pensions welfare ASIO intelligence community Australian Security Intelligence Organisation accountability public service reform Carbon Pricing Mechanism carbon tax mining military history employer employee fishing by-election European Union same sex relationships international relations coal seam gas family assistance planning Senators and Members United Nations Security Council Australian economy food vocational education and training Drugs health reform Indonesia children codes of conduct terrorist financing health system money laundering United Kingdom early childhood education Canada Financial sector national security fuel disability employment Tasmania integrity transparency Australian Secret Intelligence Service sexual abuse federal state relations World Trade Organization Australia housing affordability bulk billing water renewable energy children's health health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation expertise climate Intergovernmental Panel on Climate Change leadership Department of Agriculture Fisheries and Forestry food labelling Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets Indigenous constitutional recognition of local government local government consumer laws PISA royal commission US politics language education baby bonus Leaders of the Opposition Parliamentary remuneration Australia Greens federal election 2010 servitude Trafficking Protocol energy forced marriage rural and regional Northern Territory Emergency Response ministries social citizenship human rights emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories workers Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation standards NATO Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly public health smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Southeast Asia Israel Palestine regional unemployment asylum refugees immigration political finance donations foreign aid Economics efficiency productivity human rights; Racial Discrimination Act employment law bullying asylum seekers Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies trade unions same-sex marriage disorderly conduct retirement Parliament House standing orders public housing prime ministers election timetable sitting days First speech defence budget submarines Somalia GDP forestry world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission regulation limitation period universities Ireland cancer gene patents genetic testing suspension of standing and sessional orders animal health live exports welfare systems infant mortality middle class welfare honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC nutrition anti-dumping Constitutional reform referendum Rent Assistance competition policy pharmaceutical benefits scheme obesity evidence law sacrament of confession US presidential election international days DFAT UN General Assembly deregulation Regulation Impact Statements administrative law small business Breaker Morant homelessness regional engagement social determinants of health abortion Youth Allowance Members suspension citizen engagement policymaking workplace health and safety Trafficking in Persons Report marine reserves hearing TAFE Victoria astronomy resources sector YMCA youth parliament alcohol Korea rebate Australian Greens presidential nomination Racial Discrimination Act entitlements political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing Hung Parliament political education social inclusion Social Inclusion Board maritime early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin Iran sanctions Norway hospitals republic President Barack Obama Presidential visits ANZUS qantas counselling

Show all
Show less
Back to top